Lending Out a Rented Animal

Bava Metzia (3:2) | Yisrael Bankier | 3 months ago

The Mishnah (3:2) deals with a case where one hires a cow from his
friend, lends it to another and then the cow dies naturally. The
sho'el (borrower) is responsible to pay for the loss. This is because,
of the four types of shomrim (guardians) the shoel has the highest
level of responsibility and must pay even in cases of ones (loss that
is beyond his control). The socher (the one that rented the cow)
however is not responsible to pay in such cases provided he swears that
the animal died under no exceptional circumstances.

The question is who does the shoel pay? According to the first
opinion, the shoel is answerable to the socher and must pay him. The
socher however, as explained above, need not pay the owner. R' Yossi
finds the outcome strange, in that the socher profited, while the
owner is at a loss. Consequently, he argues that the shoel would pay
the original owner.

The Gemara (35b) also questions the first opinion. The Gemara posits
that the socher acquires the cow when he takes the oath. In other
words, once the socher is exempted from compensating the owner by
taking the oath, only then has he the right to the shoel's payment.
Consequently, the Gemara asks that the owner should be able to tell
the socher he does not want the socher to swear and instead is happy
to deal with the shoel directly. The Gemara responds that in truth,
as soon as the cow died in the hands of the shoel, the socher
acquired the cow. The subsequent oath is only to set the owner's mind at
ease that the death was not a result of negligence.

The Ritva (along with other Rishonim) understands that while the
above Gemara opens focused on the first opinion, the conclusion that
the socher acquires the cow prior to the oath, is accepted be
everyone. How then do we understand the debate in our Mishnah?
According to the first opinion, the shoel ultimately acts as the
shomer (guardian) for the socher. Who the shoel is acting as
shomer for is important. This is because if the shoel is guarding in
the presence of the subject he is acting for, then he would be exempt in
the case of ones. Consequently, in this case, if the socher was
present, the shoel would be exempt. R' Yossi however disagrees
because he understands that when the socher lent the animal to the
shoel he was acting as the agent for the owner. Consequently, the
shoel acts as the shomer for the owner. This means that it is only
if the owner was present with the shoel when the animal died, that
the shoel would be exempt.

The Tosfot however understand the position of R' Yossi differently.
The Tosfot understand the R' Yossi agrees with the Gemara's
question but not its answer. In other words, R' Yossi argues that the
shoel is answerable to owner, since the owner can reject the
shevua1. The Ritva cites a Tosfot who add that even though the
shoel is not acting as the shomer for the owner (but rather the
socher), the owner can argue that since the shoel was using his cow,
it should be considered as if it was borrowed without permission and the
shoel is obligated to pay in cases of ones (like this one). This
explanation cited by the Ritva is critical to understand the Tosfot
as will be explained.

The Rashba finds the Tosfot difficult since Abaye's rhetorical
question – "Who holds that the socher acquires with a shevua?" –
suggest the position is universally held. The Chatam Sofer also probes
why the Tosfot did not explain the position of R' Yossi like the
other Rishonim who understand that the shoel acts as the shomer
for the owner. The Chatam Sofer explains that the Tosfot resisted
this explanation because it only works according to the opinion of
Abaye (36a) who explains that our Mishnah is understood only if the
owner gave the shoel permission to lend the animal out. According to
the Abaye, the socher would indeed be acting as the agent of the
owner, and the shoel would be considered the shomer of the owner.
The Tosfot however rules like Rava who did not need to explain that
permission was granted and the socher therefore does not act as an
agent of the owner. They consequently explained R' Yossi's position
accordingly.2

1 The Tosfot continue that even if there were witnesses that the
animal died naturally, meaning that a shevua was not required, R'
Yossi would still maintain his position. This is because just as the
owner can deflect the demand for a shevua in order to engage the
shoel directly, he can do the same regarding the witnesses. If however
the owner was present when the animal died, since nothing is required of
the socher, R' Yossi must agree with the Chachamim that he
acquired the cow in this case.

2 See the Gemara to understand the debate between Abaye and Rava
regarding why (and when) a shomer that entrusts an item with another
shomer is liable.